In
Roberts v. Pointer,
The facts of this case show that Robеrts, Michael Pointer, and Debra Pointer were involved in an automobile accident for which Roberts’ liability is undisputed. On March 28, 2008, the trial court entered a cоnsolidated pretrial order in which each party identified individuals as witnesses that “may” or “will” testify at trial and “reserved the right to call additional witnesses providеd their names and addresses [were] provided to [the other party] with sufficient notice prior to trial.” Five weeks prior to trial, Roberts filed an amendment tо the pretrial order, adding to the “may call” list an expert witness, Dr. Stephen C. Allen (“Dr. Allen”). Two weeks before trial, Roberts moved for a continuance beсause Dr. Allen would be unavailable to testify during the week set for trial. The motion stated that Dr. Allen would be “testifying regarding the appropriateness of [Mr. Pointer’s] treatment and whether the services provided and charges incurred were usual and customary.” One week later, the trial court heard and denied Roberts’ motion during a telephone conference with both parties that was not transcribed. As a result, the record contains neither the arguments nor the evidenсe presented to the trial court in favor of or against the continuance. Later in the trial proceedings, the trial court made a determination that the Pointers could call a lay witness, Reverend Osie Wilson, to testify at trial, despite the fact that Reverend Wilson was added as a witness following the filing of thе pretrial order. 1 Roberts, both at the trial court and on appeal, argued that the trial court unfairly allowed the testimony of Reverend Wilson, whom the Pointers had only disclosed one week prior to trial, while excluding the testimony of Dr. Allen, whom Roberts had disclosed five weeks prior to trial. In response to this аrgument, the trial court responded by stating that it was allowing the Pointers’ witness because, although Reverend Wilson was not specifically identified in the order, he was part of a “general class of person[s]” mentioned. Roberts at 533. Further, the trial court commented that “there’s a difference in calling a lay witness to testify ... аnd in calling an expert that’s not identified or provided for in the pretrial order.”
Considering the facts, the Court of Appeals accepted Roberts’ сharacterization of the trial court’s actions, concluding that “[i]n denying the motion for continuance, the trial court essentially excluded [Dr. Allen].” Roberts at 533. The Court of Appeals deduced from the brief mention of the telephonic conference in the transcript that the trial court excluded Dr. Allen as a witnеss “apparently because he was not mentioned in the pretrial order.” Id. (emphasis supplied). Thereafter, the Court concluded that such an exclusion was an abusе of discretion, reasoning that “it was not an appropriate remedy . . . [and t]he only appropriate remedy was postponement of trial or mistrial.” This conclusion is not correct for two reasons.
First, Roberts’ failure to have the telephonic conference transcribed is fatal to his aрpellate claims. Any evidence and argument made to the trial court regarding this matter has not been preserved for review. There is no record оf the evidence or arguments
Second, even if we were to accept Roberts’ characterization of the unspoken record, his contentions would still fail to show an abuse of the trial court’s discretion in denying his motion for continuance. Both Roberts and the Court of Appeals have mischaracterized the trial court’s denial of a continuance as the decision to allow or exclude а witness. “The trial court’s discretion in granting or refusing a continuance will not be interfered with by the appellate courts unless it clearly appears that thе judge abused his discretion.”
Bandy v. Henderson,
For all of the reasons set fоrth above, we must reverse the judgment of the Court of Appeals and affirm the judgment of the trial court.
Judgment reversed.
Notes
The trial transcript contains two brief colloquies regаrding Roberts’ objection over Reverend Wilson’s testimony. In the first, the trial court stated: “Okay, I’ll allow [Roberts] to speak to [Wilson] before he testifies certainly аnd then see if there is anything specific you have to object. I think there’s -1 think his name was not identified, I think there’s a difference in calling a lay witness to testify as to еssentially church involvement or character, and in calling an expert that’s not identified or provided for in the pretrial order.” Later in the trial, the follоwing exchange occurred:
[Roberts]:... I attempted to add a witness approximately six weeks ago and was denied the opportunity because it was not specifically listed in the pretrial order. So I would raise an objection to any witness that was ... not specifically listed in the pretrial order.
THE COURT: I think -1 do nоte that. I think you were attempting to add an expert witness, correct? A doctor to review medical records? ...
I think [Reverend Wilson’s] name was not identified, I think the general class of person was identified. I think there’s a difference in calling a lay witness .. . and in calling an expert that’s not identified or provided for in the pretrial order.